After a prolonged sick leave, returning to work can become a moment of conflict between worker and company. In Spain, the law provides mechanisms to protect those returning with health limitations. In Portugal, the framework exists, but it works differently and with important nuances.
What’s happening in Spain
In Spain, occupational health surveillance and risk prevention impose obligations on companies when a worker returns after health problems. The Prevention Services Regulation (Royal Decree 39/1997) provides, in health surveillance, for an assessment when the worker resumes duties after a prolonged absence for health reasons.
According to Noticias Trabajo, it is common that, after recognition, the worker is considered “fit with limitations”. In these cases, the company must adopt prevention and protection measures and, when necessary, adjust tasks and conditions to the identified restrictions, in line with the protection of especially sensitive workers provided for in article 25 of Law 31/1995, on Prevention of Labor Riesgos.
According to the same publication, when the company ignores these limitations and does not take measures, the worker can go to court and request the termination of the contract due to serious breach by the employer, under article 50 of the Estatuto de los Trabajadores. It is this mechanism that, in media language, often appears as “self-undressing”, although in practice it corresponds to an termination of the contract requested by the worker and decided in court.
Compensation and “stop” depend on court decision
If the court finds the worker in favor, article 50 of the Estatuto de los Trabajadores determines that there is a right to compensation provided for unfounded dismissal. As a rule, this compensation corresponds to 33 days’ salary for each year of service, up to a maximum of 24 monthly payments, without prejudice to the transitional regime applicable to seniority prior to February 12, 2012.
Regarding access to unemployment benefit, the State Public Employment Service (SEPE) includes, among the legal situations of unemployment, the worker’s decision to end the employment relationship due to serious breach by the employer, which allows the request to be “stopped” as long as the remaining requirements are met.
In the article cited, it refers to a case reported by labor lawyer Víctor Arpa, who says he is preparing a legal action to request the termination of the contract precisely based on this framework.
And in Portugal, is there something similar?
In Portugal, there is no figure formally designated as “self-dismissal”. However, the Labor Code provides for a functionally similar mechanism: the termination of the contract with just cause at the initiative of the worker, provided for in article 394.
In terms of safety and health at work, Law No. 102/2009 imposes on the employer the duty to ensure safety and health conditions and enshrines the principle of adapting work to the worker, including the design of the position, the choice of equipment and work methods (article 15).
The same law provides for occasional examinations upon returning to work after an absence of more than 30 days due to illness or accident (article 108) and determines that the occupational physician fills out a fitness form and must indicate, when unfit, other functions that the worker can perform (article 110).
If, in the face of clinically indicated limitations, the company keeps the worker in conditions that are incompatible with their safety and health, this may, in certain cases, support a resolution with just cause, namely due to a culpable lack of safety and health conditions at work, provided for in article 394 of the Labor Code.
Compensation and unemployment benefit in Portugal
If just cause is proven, the worker is entitled to compensation under the terms of article 396 of the Labor Code, calculated between 15 and 45 days of basic remuneration and seniority benefits for each full year of service, which cannot be less than three months.
As for unemployment benefit, Decree-Law No. 220/2006 considers involuntary unemployment to be the case with just cause at the initiative of the worker, allowing access to the benefit as long as the remaining requirements are met. In practice, if there is a challenge from the employer, legal support may be necessary to demonstrate the situation.
Essential differences between the two countries
The main difference between Spain and Portugal is in the way the mechanism works. In Spain, the termination of the contract due to serious breach by the employer is requested from the court and depends on a judicial decision. In Portugal, the resolution is communicated by the worker, but can be contested and, in the event of a conflict, the evidence becomes decisive.
In both countries, the key is the same: clear clinical and occupational health documentation, and objective demonstration that the company did not adopt adequate measures to guarantee safety and health conditions upon return after sick leave.
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